Constitution Act, 1867
Encyclopedia
The Constitution Act, 1867 (formerly called the British North America Act, 1867, and still known informally as the BNA Act), is a major part of Canada's Constitution
. The Act created a federal
dominion
and defines much of the operation of the Government of Canada
, including its federal structure
, the House of Commons
, the Senate
, the justice system, and the taxation system. The British North America Acts
, including this Act, were renamed in 1982 with the patriation
of the Constitution (originally enacted by the British Parliament); however, it is still known by its original name in United Kingdom records. Amendments were also made at this time: section 92A was added, giving provinces greater control over non-renewable natural resource
s.
that declares that the three provinces New Brunswick
, Nova Scotia
and the Province of Canada
(which would become Ontario
and Quebec
) have requested to form a Confederation. This Confederation, the preamble goes on to claim, will have "a Constitution similar in Principle to that of the United Kingdom
". This description of the Constitution has proven important in its interpretation. As Peter Hogg
wrote in Constitutional Law of Canada, some have argued that since the United Kingdom had some freedom of expression in 1867, the preamble extended this right to Canada even before the enactment of the Canadian Charter of Rights and Freedoms
in 1982; this was one of the supposed bases for the Implied Bill of Rights
. Moreover, since the UK had a tradition of judicial independence
, the Supreme Court of Canada
ruled in the Provincial Judges Reference
of 1997 that the preamble shows judicial independence in Canada is constitutionally guaranteed. Political scientist Rand Dyck
has criticized the preamble, saying it is "seriously out of date". Thus, he claims the Constitution Act, 1867 "lacks an inspirational introduction".
The preamble to the Constitution Act, 1867 is not the Constitution of Canada's only preamble. The Charter also has a preamble
.
, were renamed Ontario
and Quebec
, respectively, and were given equal footing with New Brunswick and Nova Scotia in the Parliament of Canada
, as representation by population was accepted for the Canadian House of Commons, as was a notion of regional equality in the Canadian Senate, with the Ontario, Quebec and Maritime "regions" receiving an equal number of senators. This creation, or Confederation
, was done so Canada could be strong enough to be an independent country without total reliance on Britain. The British no longer wanted to pay for Canada's defence, and furthermore London acted primarily in Britain's interest, and did not put Canadian interests first.
Prior to the BNA Act, 1867, the British colonies of New Brunswick, Nova Scotia, and Prince Edward Island
discussed the possibility of a fusion to counter the threat of American annexation and to reduce the costs of governance. The Province of Canada entered these negotiations at the behest of the British government, and led to the ambivalence of Prince Edward Island, which delayed joining the new Dominion for seven years, even though the constitutional conference was held there, in Charlottetown
.
, respectively (both are primarily provincial responsibilities). Section 94 leaves open a possible change to laws regarding property and civil rights, which so far has not been realized. Sections 94A and 95, meanwhile, address matters of shared jurisdiction, namely old age pensions (section 94A) and agriculture
and immigration
(section 95).
to "make laws for the peace, order, and good government of Canada, in relation to all matters not coming within the classes of subjects by this Act assigned exclusively to the Legislatures of the provinces". This gives Parliament residuary powers to enact laws in any area that has not been allocated to the provincial government
s. Thus, when analyzing each matter of jurisdictional dispute, it is with the mind that if it is not enumerated, then it is within the de jure authority of Parliament.
, and it is on this authority that Parliament amends said Code.
However, under section 92 (14), the provinces are delegated the power to administer justice, "including the constitution, maintenance, and organization of provincial courts, both of civil and criminal jurisdictions, and including procedure in civil matters in both courts". This allows the provinces to prosecute offences under the Criminal Code and to create a provincial police force such as the OPP
and the Sûreté du Québec (SQ)
.
Section 91(28) gives Parliament exclusive power over "penitentiaries" while section 92(6) gives the provinces power over the "prisons". This means that offenders sentenced to two years or more go to federal penitentiaries while those with lighter sentences go to provincial prisons.
and civil rights in the province". In practice, this power has been read broadly giving the provinces authority over numerous matters such as professional trades, labour relations, and consumer protection.
There are also several instances of overlap in laws relating to marriage and divorce, which in most cases is solved through interjurisdictional immunity. For instance, the federal Divorce Act
is valid legislation, even though the Divorce Act has some incidental effects on child custody
, which is usually considered to be within the provincial jurisdictions of "civil rights" (s. 92(13)) and "matters of a private nature" (s. 92(16)).
, the Tax Court of Canada
and the Court Martial Appeal Court of Canada
are all created under the second branch, i.e. as "additional Courts for the better Administration of the Laws of Canada".
, both of original jurisdiction and appeal, as well as inferior tribunals.
Superior courts are known as "courts of inherent jurisdiction", as they receive their constitutional authority from historical convention inherited from the United Kingdom.
Historically, this section has been interpreted as providing superior courts of inherent jurisdiction
with the constitutional authority to hear cases. The "section 96 courts" are typically characterized as the "anchor" of the justice system around which the other courts must conform. As their jurisdiction is said to be "inherent", the courts have the authority to try all matters of law except where the jurisdiction has been taken away by another court. However, courts created by the federal government under section 101 or by the provincial government under 92(14) are generally not allowed to intrude on the core jurisdiction of a section 96 court.
The scope of the core jurisdiction of the section 96 courts has been a matter of considerable debate and litigation. When commencing litigation a court's jurisdiction may be challenged on the basis that it does not have jurisdiction. The issue is typically whether the statutory court created under section 101 or 92(14) has encroached upon the exclusive jurisdiction
of a section 96 court.
To validiate the jurisdiction of a federal or provincial tribunal it must satisfy a three-step inquiry first outlined in Re Residential Tenancies Act, 1979
(1981). The tribunal must not touch upon what was historically intended as the jurisdiction of the superior court. The first stage of inquiry considers what matters were typically exclusive to the court at the time of Confederation in 1867. In Sobeys Stores Ltd. v. Yeomans (1989) the Supreme Court stated that the "nature of the disputes" historically heard by the superior courts, not just the historical remedies provided, must be read broadly. If the tribunal is found to intrude on the historical jurisdiction of the superior court, the inquiry must turn to the second stage which considers whether the function of the tribunal and whether it operates as an adjudicative body. The final step assesses the context of the tribunal's exercise of power and looks to see if there are any further considerations to justify its encroachment upon the superior court's jurisdiction.
(2003) the Supreme Court re-articulated the test for constitutional jurisdiction from Cooper v. Canada (Human Rights Commission). The inquiry must begin by determining whether the enabling legislation gives explicit authority to apply the law. If so, then the court may apply the constitution. The second line of inquiry looks into whether there was implied authority to apply the law. This can be found by examining the text of the Act, its context, and the general nature and characteristics of the adjudicative body.
See Section Twenty-four of the Canadian Charter of Rights and Freedoms for jurisdiction of the Charter.
in the Constitution Act, 1867. Still, there are narrow constitutional rights scattered throughout the document. Hogg has referred to them as the "small bill of rights", though the Supreme Court in Greater Montreal Protestant School Board v. Quebec (1989) disliked that characterization in that rights in the Constitution Act, 1867 should not be interpreted as liberally as rights in the Charter. The rights Hogg identifies include language rights. There are also denominational school rights under section 93 (reaffirmed by section 29
of the Charter), notwithstanding provincial jurisdiction over education in Canada
. Section 99 establishes a right for judges to serve unless removed by the legislature. Democratic rights include the rule that Parliament and the legislatures of Ontario and Quebec must sit at least once a year under sections 20 and 86, and there must be a federal election at least once every five years under section 50. These are repeated in section 4
and section 5
of the Charter and section 20 of the Constitution Act, 1867 has been repealed. The Constitution Act, 1867 also guarantees representation by population. Finally, section 121 allows for people to carry goods across provincial borders at no charge, and section 125 exempts government from paying land taxes.
s, it did provide some rights for the users of both languages in respect of some institutions of the federal and Quebec governments.
Section 133 allowed bilingualism in both the federal Parliament and the Quebec provincial legislature, allowed for records to be kept in both languages, and allowed bilingualism in federal and Quebec courts. Interpretation of this section has found that this provision requires that all statutes and delegated legislation be in both languages and be of equal force. Likewise, it has been found that the meaning of "courts" in section 133 includes all federal and provincial courts as well as all tribunals that exercise an adjudicative function.
These rights are duplicated in respect to the federal government, but not Quebec, and extended to New Brunswick, by section 17
, section 18
, and section 19
of the Charter of Rights; section 16
and section 20
of the Charter elaborate by declaring English and French to be the official languages and allowing for bilingual public services.
, Canada's national holiday
.
Constitution of Canada
The Constitution of Canada is the supreme law in Canada; the country's constitution is an amalgamation of codified acts and uncodified traditions and conventions. It outlines Canada's system of government, as well as the civil rights of all Canadian citizens and those in Canada...
. The Act created a federal
Federation
A federation , also known as a federal state, is a type of sovereign state characterized by a union of partially self-governing states or regions united by a central government...
dominion
Dominion
A dominion, often Dominion, refers to one of a group of autonomous polities that were nominally under British sovereignty, constituting the British Empire and British Commonwealth, beginning in the latter part of the 19th century. They have included Canada, Australia, New Zealand, Newfoundland,...
and defines much of the operation of the Government of Canada
Government of Canada
The Government of Canada, formally Her Majesty's Government, is the system whereby the federation of Canada is administered by a common authority; in Canadian English, the term can mean either the collective set of institutions or specifically the Queen-in-Council...
, including its federal structure
Canadian federalism
Canada is a federation with two distinct jurisdictions of political authority: the country-wide federal government and the ten regionally-based provincial governments. It also has three territorial governments in the far north, though these are subject to the federal government...
, the House of Commons
Canadian House of Commons
The House of Commons of Canada is a component of the Parliament of Canada, along with the Sovereign and the Senate. The House of Commons is a democratically elected body, consisting of 308 members known as Members of Parliament...
, the Senate
Canadian Senate
The Senate of Canada is a component of the Parliament of Canada, along with the House of Commons, and the monarch . The Senate consists of 105 members appointed by the governor general on the advice of the prime minister...
, the justice system, and the taxation system. The British North America Acts
British North America Acts
The British North America Acts 1867–1975 are the original names of a series of Acts at the core of the constitution of Canada. They were enacted by the Parliament of the United Kingdom and the Parliament of Canada. In Canada, some of the Acts were amended or repealed by the Constitution Act, 1982....
, including this Act, were renamed in 1982 with the patriation
Patriation
Patriation is a non-legal term used in Canada to describe a process of constitutional change also known as "homecoming" of the constitution. Up until 1982, Canada was governed by a constitution that was a British law and could be changed only by an Act of the British Parliament...
of the Constitution (originally enacted by the British Parliament); however, it is still known by its original name in United Kingdom records. Amendments were also made at this time: section 92A was added, giving provinces greater control over non-renewable natural resource
Natural resource
Natural resources occur naturally within environments that exist relatively undisturbed by mankind, in a natural form. A natural resource is often characterized by amounts of biodiversity and geodiversity existent in various ecosystems....
s.
Preamble
The Act begins with a preamblePreamble
A preamble is an introductory and expressionary statement in a document that explains the document's purpose and underlying philosophy. When applied to the opening paragraphs of a statute, it may recite historical facts pertinent to the subject of the statute...
that declares that the three provinces New Brunswick
New Brunswick
New Brunswick is one of Canada's three Maritime provinces and is the only province in the federation that is constitutionally bilingual . The provincial capital is Fredericton and Saint John is the most populous city. Greater Moncton is the largest Census Metropolitan Area...
, Nova Scotia
Nova Scotia
Nova Scotia is one of Canada's three Maritime provinces and is the most populous province in Atlantic Canada. The name of the province is Latin for "New Scotland," but "Nova Scotia" is the recognized, English-language name of the province. The provincial capital is Halifax. Nova Scotia is the...
and the Province of Canada
Province of Canada
The Province of Canada, United Province of Canada, or the United Canadas was a British colony in North America from 1841 to 1867. Its formation reflected recommendations made by John Lambton, 1st Earl of Durham in the Report on the Affairs of British North America following the Rebellions of...
(which would become Ontario
Ontario
Ontario is a province of Canada, located in east-central Canada. It is Canada's most populous province and second largest in total area. It is home to the nation's most populous city, Toronto, and the nation's capital, Ottawa....
and Quebec
Quebec
Quebec or is a province in east-central Canada. It is the only Canadian province with a predominantly French-speaking population and the only one whose sole official language is French at the provincial level....
) have requested to form a Confederation. This Confederation, the preamble goes on to claim, will have "a Constitution similar in Principle to that of the United Kingdom
Constitution of the United Kingdom
The constitution of the United Kingdom is the set of laws and principles under which the United Kingdom is governed.Unlike many other nations, the UK has no single core constitutional document. In this sense, it is said not to have a written constitution but an uncodified one...
". This description of the Constitution has proven important in its interpretation. As Peter Hogg
Peter Hogg
Peter Wardell Hogg, CC, QC, FRSC is a Canadian lawyer, author and legal scholar. He is best known as a leading authority on Canadian constitutional law....
wrote in Constitutional Law of Canada, some have argued that since the United Kingdom had some freedom of expression in 1867, the preamble extended this right to Canada even before the enactment of the Canadian Charter of Rights and Freedoms
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
in 1982; this was one of the supposed bases for the Implied Bill of Rights
Implied Bill of Rights
The Implied Bill of Rights is a judicial theory in Canadian jurisprudence that recognizes that certain basic principles are underlying the Constitution of Canada...
. Moreover, since the UK had a tradition of judicial independence
Judicial independence
Judicial Independence is the idea that the judiciary needs to be kept away from the other branches of government...
, the Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
ruled in the Provincial Judges Reference
Provincial Judges Reference
The Provincial Judges Reference [1997] 3 S.C.R. 3 is a leading opinion of the Supreme Court of Canada in response to a reference question regarding remuneration and the independence and impartiality of provincial court judges...
of 1997 that the preamble shows judicial independence in Canada is constitutionally guaranteed. Political scientist Rand Dyck
Rand Dyck
Dr. Perry Rand Dyck, B.A., M.A., Ph.D. Professor Emeritus, Laurentian University is the author of the Canadian Politics: Critical Approaches textbook which is used in many Canadian Universities, and taught to students studying Political Science, Law, Economics, Women's Studies, Philosophy,...
has criticized the preamble, saying it is "seriously out of date". Thus, he claims the Constitution Act, 1867 "lacks an inspirational introduction".
The preamble to the Constitution Act, 1867 is not the Constitution of Canada's only preamble. The Charter also has a preamble
Preamble to the Canadian Charter of Rights and Freedoms
The preamble to the Canadian Charter of Rights and Freedoms is the introductory sentence to the Constitution of Canada's Charter of Rights and Constitution Act, 1982...
.
Union
The British North America Act, 1867 established the Dominion of Canada by fusing the North American British colonies of the Province of Canada, the Province of New Brunswick, and Nova Scotia. The two subdivisions of the Province of Canada, Canada West and Canada EastCanada East
Canada East was the eastern portion of the United Province of Canada. It consisted of the southern portion of the modern-day Canadian Province of Quebec, and was primarily a French-speaking region....
, were renamed Ontario
Ontario
Ontario is a province of Canada, located in east-central Canada. It is Canada's most populous province and second largest in total area. It is home to the nation's most populous city, Toronto, and the nation's capital, Ottawa....
and Quebec
Quebec
Quebec or is a province in east-central Canada. It is the only Canadian province with a predominantly French-speaking population and the only one whose sole official language is French at the provincial level....
, respectively, and were given equal footing with New Brunswick and Nova Scotia in the Parliament of Canada
Parliament of Canada
The Parliament of Canada is the federal legislative branch of Canada, seated at Parliament Hill in the national capital, Ottawa. Formally, the body consists of the Canadian monarch—represented by her governor general—the Senate, and the House of Commons, each element having its own officers and...
, as representation by population was accepted for the Canadian House of Commons, as was a notion of regional equality in the Canadian Senate, with the Ontario, Quebec and Maritime "regions" receiving an equal number of senators. This creation, or Confederation
Canadian Confederation
Canadian Confederation was the process by which the federal Dominion of Canada was formed on July 1, 1867. On that day, three British colonies were formed into four Canadian provinces...
, was done so Canada could be strong enough to be an independent country without total reliance on Britain. The British no longer wanted to pay for Canada's defence, and furthermore London acted primarily in Britain's interest, and did not put Canadian interests first.
Prior to the BNA Act, 1867, the British colonies of New Brunswick, Nova Scotia, and Prince Edward Island
Prince Edward Island
Prince Edward Island is a Canadian province consisting of an island of the same name, as well as other islands. The maritime province is the smallest in the nation in both land area and population...
discussed the possibility of a fusion to counter the threat of American annexation and to reduce the costs of governance. The Province of Canada entered these negotiations at the behest of the British government, and led to the ambivalence of Prince Edward Island, which delayed joining the new Dominion for seven years, even though the constitutional conference was held there, in Charlottetown
Charlottetown
Charlottetown is a Canadian city. It is both the largest city on and the provincial capital of Prince Edward Island, and the county seat of Queens County. Named after Queen Charlotte, the wife of George III, Charlottetown was first incorporated as a town in 1855 and designated as a city in 1885...
.
Distribution of powers
The powers of government are divided between the provinces and the federal government and are described in sections 91 to 95 of the Act. Sections 91 and 92 are of particular importance, as they enumerate the subjects for which each jurisdiction can enact law, with section 91 listing matters of federal jurisdiction and section 92 listing matters of provincial jurisdiction. Sections 92A and 93 are concerned with non-renewable natural resources and educationEducation
Education in its broadest, general sense is the means through which the aims and habits of a group of people lives on from one generation to the next. Generally, it occurs through any experience that has a formative effect on the way one thinks, feels, or acts...
, respectively (both are primarily provincial responsibilities). Section 94 leaves open a possible change to laws regarding property and civil rights, which so far has not been realized. Sections 94A and 95, meanwhile, address matters of shared jurisdiction, namely old age pensions (section 94A) and agriculture
Agriculture
Agriculture is the cultivation of animals, plants, fungi and other life forms for food, fiber, and other products used to sustain life. Agriculture was the key implement in the rise of sedentary human civilization, whereby farming of domesticated species created food surpluses that nurtured the...
and immigration
Immigration
Immigration is the act of foreigners passing or coming into a country for the purpose of permanent residence...
(section 95).
Peace, order, and good government
Section 91 authorizes ParliamentParliament of Canada
The Parliament of Canada is the federal legislative branch of Canada, seated at Parliament Hill in the national capital, Ottawa. Formally, the body consists of the Canadian monarch—represented by her governor general—the Senate, and the House of Commons, each element having its own officers and...
to "make laws for the peace, order, and good government of Canada, in relation to all matters not coming within the classes of subjects by this Act assigned exclusively to the Legislatures of the provinces". This gives Parliament residuary powers to enact laws in any area that has not been allocated to the provincial government
Provinces and territories of Canada
The provinces and territories of Canada combine to make up the world's second-largest country by area. There are ten provinces and three territories...
s. Thus, when analyzing each matter of jurisdictional dispute, it is with the mind that if it is not enumerated, then it is within the de jure authority of Parliament.
Criminal law
Section 91 (27) gives Parliament the power to make law related to the "criminal law, except the constitution of courts of criminal jurisdiction, but including the procedure in criminal matters". It was on this authority that Parliament created the Criminal Code of CanadaCriminal Code of Canada
The Criminal Code or Code criminel is a law that codifies most criminal offences and procedures in Canada. Its official long title is "An Act respecting the criminal law"...
, and it is on this authority that Parliament amends said Code.
However, under section 92 (14), the provinces are delegated the power to administer justice, "including the constitution, maintenance, and organization of provincial courts, both of civil and criminal jurisdictions, and including procedure in civil matters in both courts". This allows the provinces to prosecute offences under the Criminal Code and to create a provincial police force such as the OPP
Ontario Provincial Police
The Ontario Provincial Police is the Provincial Police service for the province of Ontario, Canada.-Overview:The OPP is the the largest deployed police force in Ontario, and the second largest in Canada. The service is responsible for providing policing services throughout the province in areas...
and the Sûreté du Québec (SQ)
Sûreté du Québec
Sûreté du Québec or SQ is the provincial police force for the Canadian province of Québec...
.
Section 91(28) gives Parliament exclusive power over "penitentiaries" while section 92(6) gives the provinces power over the "prisons". This means that offenders sentenced to two years or more go to federal penitentiaries while those with lighter sentences go to provincial prisons.
Property and civil rights
Section 92(13) gives the provinces the exclusive power to make law related to "propertyProperty
Property is any physical or intangible entity that is owned by a person or jointly by a group of people or a legal entity like a corporation...
and civil rights in the province". In practice, this power has been read broadly giving the provinces authority over numerous matters such as professional trades, labour relations, and consumer protection.
Marriage
Section 91(26) gives the federal government power over divorce and marriage. On this basis, Parliament can legislate laws related to marriage and divorce. However, the provinces retain the power over the solemnization of marriage (section 92(12)).There are also several instances of overlap in laws relating to marriage and divorce, which in most cases is solved through interjurisdictional immunity. For instance, the federal Divorce Act
Divorce Act
Canada's Divorce Act is the federal Act that governs divorce in that country. The Constitution of Canada has explicitly made marriage and divorce the realm of the federal government rather than of the provinces....
is valid legislation, even though the Divorce Act has some incidental effects on child custody
Child custody
Child custody and guardianship are legal terms which are used to describe the legal and practical relationship between a parent and his or her child, such as the right of the parent to make decisions for the child, and the parent's duty to care for the child.Following ratification of the United...
, which is usually considered to be within the provincial jurisdictions of "civil rights" (s. 92(13)) and "matters of a private nature" (s. 92(16)).
Justice system and law of Canada (legal system)
The authority over the judicial system in Canada is divided between Parliament and the provincial Legislatures.Parliament's power to create federal courts
Section 101 gives Parliament power to create a "general court of appeal for Canada" and "additional Courts for the better Administration of the Laws of Canada". Parliament has used this power to create the Supreme Court of Canada and lower federal courts. It has created the Supreme Court under both branches of s. 101.. The lower federal courts, such as the Federal Court of Appeal, the Federal CourtFederal Court (Canada)
The Federal Court is a Canadian trial court that hears cases arising under certain areas of federal law. The Federal Court is a superior court with nationwide jurisdiction...
, the Tax Court of Canada
Tax Court of Canada
The Tax Court of Canada , established in 1983 by the Tax Court of Canada Act, is a federal superior court which deals with matters involving companies or individuals and tax issues with the Government of Canada....
and the Court Martial Appeal Court of Canada
Court Martial Appeal Court of Canada
The Court Martial Appeal Court of Canada hears appeals from military courts .In Canada, courts martial are presided over by independent military judges from the office of the Chief Military Judge...
are all created under the second branch, i.e. as "additional Courts for the better Administration of the Laws of Canada".
Provincial power to create courts
Section 92(14) gives the provincial legislatures the power over the "Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction". This power includes the creation of both the superior courtsSuperior court
In common law systems, a superior court is a court of general competence which typically has unlimited jurisdiction with regard to civil and criminal legal cases...
, both of original jurisdiction and appeal, as well as inferior tribunals.
Superior courts are known as "courts of inherent jurisdiction", as they receive their constitutional authority from historical convention inherited from the United Kingdom.
Section 96 courts
Section 96 authorizes the federal government to appoint judges for "the Superior, District, and County Courts in each Province". No provinces have district or county courts anymore, but all provinces have superior courts. Although the provinces pay for these courts and determine their jurisdiction and procedural rules, the federal government appoints and pays their judges.Historically, this section has been interpreted as providing superior courts of inherent jurisdiction
Inherent jurisdiction
Inherent jurisdiction is a doctrine of the English common law that a superior court has the jurisdiction to hear any matter that comes before it, unless a statute or rule limits that authority or grants exclusive jurisdiction to some other court or tribunal...
with the constitutional authority to hear cases. The "section 96 courts" are typically characterized as the "anchor" of the justice system around which the other courts must conform. As their jurisdiction is said to be "inherent", the courts have the authority to try all matters of law except where the jurisdiction has been taken away by another court. However, courts created by the federal government under section 101 or by the provincial government under 92(14) are generally not allowed to intrude on the core jurisdiction of a section 96 court.
The scope of the core jurisdiction of the section 96 courts has been a matter of considerable debate and litigation. When commencing litigation a court's jurisdiction may be challenged on the basis that it does not have jurisdiction. The issue is typically whether the statutory court created under section 101 or 92(14) has encroached upon the exclusive jurisdiction
Exclusive jurisdiction
In civil procedure, exclusive jurisdiction exists where one court has the power to adjudicate a case to the exclusion of all other courts. It is the opposite situation from concurrent jurisdiction, in which more than one court may take jurisdiction over the case.Exclusive jurisdiction is typically...
of a section 96 court.
To validiate the jurisdiction of a federal or provincial tribunal it must satisfy a three-step inquiry first outlined in Re Residential Tenancies Act, 1979
Re Residential Tenancies Act, 1979
Reference re Residential Tenancies Act, [1981] 1 S.C.R. 714 is a leading Supreme Court of Canada decision on the jurisdiction of superior courts provided by section 96 of the Constitution Act, 1867...
(1981). The tribunal must not touch upon what was historically intended as the jurisdiction of the superior court. The first stage of inquiry considers what matters were typically exclusive to the court at the time of Confederation in 1867. In Sobeys Stores Ltd. v. Yeomans (1989) the Supreme Court stated that the "nature of the disputes" historically heard by the superior courts, not just the historical remedies provided, must be read broadly. If the tribunal is found to intrude on the historical jurisdiction of the superior court, the inquiry must turn to the second stage which considers whether the function of the tribunal and whether it operates as an adjudicative body. The final step assesses the context of the tribunal's exercise of power and looks to see if there are any further considerations to justify its encroachment upon the superior court's jurisdiction.
Constitutional jurisdiction
Not all courts and tribunals have jurisdiction to hear constitutional challenges. The court, at the very least, must have jurisdiction to apply the law. In N.S. v. Martin; N.S. v. LaseurN.S. v. Martin; N.S. v. Laseur
Nova Scotia v. Martin; Nova Scotia v. Laseur, [2003] 2 S.C.R. 504, 2003 SCC 54, is a leading Supreme Court of Canada decision. The Court re-examined the authority of tribunals to hear constitutional challenges and their power to strike down legislation under section 52 of the Constitution Act,...
(2003) the Supreme Court re-articulated the test for constitutional jurisdiction from Cooper v. Canada (Human Rights Commission). The inquiry must begin by determining whether the enabling legislation gives explicit authority to apply the law. If so, then the court may apply the constitution. The second line of inquiry looks into whether there was implied authority to apply the law. This can be found by examining the text of the Act, its context, and the general nature and characteristics of the adjudicative body.
See Section Twenty-four of the Canadian Charter of Rights and Freedoms for jurisdiction of the Charter.
Small bill of rights
Aside from the theory of the Implied Bill of Rights, there is no actual written bill of rightsBill of rights
A bill of rights is a list of the most important rights of the citizens of a country. The purpose of these bills is to protect those rights against infringement. The term "bill of rights" originates from England, where it referred to the Bill of Rights 1689. Bills of rights may be entrenched or...
in the Constitution Act, 1867. Still, there are narrow constitutional rights scattered throughout the document. Hogg has referred to them as the "small bill of rights", though the Supreme Court in Greater Montreal Protestant School Board v. Quebec (1989) disliked that characterization in that rights in the Constitution Act, 1867 should not be interpreted as liberally as rights in the Charter. The rights Hogg identifies include language rights. There are also denominational school rights under section 93 (reaffirmed by section 29
Section Twenty-nine of the Canadian Charter of Rights and Freedoms
Section Twenty-nine of the Canadian Charter of Rights and Freedoms is the section of Charter that most specifically addresses rights regarding denominational schools and separate schools...
of the Charter), notwithstanding provincial jurisdiction over education in Canada
Education in Canada
Education in Canada is for the most part provided publicly, funded and overseen by federal, provincial, and local governments. Education is within provincial jurisdiction and the curriculum is overseen by the province. Education in Canada is generally divided into primary education, followed by...
. Section 99 establishes a right for judges to serve unless removed by the legislature. Democratic rights include the rule that Parliament and the legislatures of Ontario and Quebec must sit at least once a year under sections 20 and 86, and there must be a federal election at least once every five years under section 50. These are repeated in section 4
Section Four of the Canadian Charter of Rights and Freedoms
Section Four of the Canadian Charter of Rights and Freedoms is one of three democratic rights sections in the Charter. Section 4 guarantees that federal and provincial elections must take place from time to time. Subsection 4 provides that the maximum term of the House of Commons, and of all the...
and section 5
Section Five of the Canadian Charter of Rights and Freedoms
Section Five of the Canadian Charter of Rights and Freedoms is a part of the Constitution of Canada, and the last of three democratic rights in the Charter. Its role is to establish a rule regarding how frequently the Parliament of Canada and the legislatures of the provinces and territories of...
of the Charter and section 20 of the Constitution Act, 1867 has been repealed. The Constitution Act, 1867 also guarantees representation by population. Finally, section 121 allows for people to carry goods across provincial borders at no charge, and section 125 exempts government from paying land taxes.
Language rights
Although the 1867 Act did not establish English and French as Canada's official languageOfficial language
An official language is a language that is given a special legal status in a particular country, state, or other jurisdiction. Typically a nation's official language will be the one used in that nation's courts, parliament and administration. However, official status can also be used to give a...
s, it did provide some rights for the users of both languages in respect of some institutions of the federal and Quebec governments.
Section 133 allowed bilingualism in both the federal Parliament and the Quebec provincial legislature, allowed for records to be kept in both languages, and allowed bilingualism in federal and Quebec courts. Interpretation of this section has found that this provision requires that all statutes and delegated legislation be in both languages and be of equal force. Likewise, it has been found that the meaning of "courts" in section 133 includes all federal and provincial courts as well as all tribunals that exercise an adjudicative function.
These rights are duplicated in respect to the federal government, but not Quebec, and extended to New Brunswick, by section 17
Section Seventeen of the Canadian Charter of Rights and Freedoms
Section Seventeen of the Canadian Charter of Rights and Freedoms is one of the provisions of the Charter that addresses rights relating to Canada's two official languages, English and French...
, section 18
Section Eighteen of the Canadian Charter of Rights and Freedoms
Section Eighteen of the Canadian Charter of Rights and Freedoms is one of the provisions of the Charter that addresses rights relating to Canada's two official languages, English and French. Like section 133 of the Constitution Act, 1867, section 18 requires that all statutes and other records...
, and section 19
Section Nineteen of the Canadian Charter of Rights and Freedoms
Section Nineteen of the Canadian Charter of Rights and Freedoms is one of the provisions of the Charter that addresses rights relating to Canada's two official languages, English and French. Like section 133 of the Constitution Act, 1867, section 19 allows anyone to speak English or French in...
of the Charter of Rights; section 16
Section Sixteen of the Canadian Charter of Rights and Freedoms
Section Sixteen of the Canadian Charter of Rights and Freedoms is the first of several sections of the Charter dealing with Canada's two official languages, English and French...
and section 20
Section Twenty of the Canadian Charter of Rights and Freedoms
Section Twenty of the Canadian Charter of Rights and Freedoms is one of the sections of the Charter dealing with Canada's two official languages, English and French. Along with section 16, section 20 is one of the few sections under the title "Official Languages of Canada" that guarantees...
of the Charter elaborate by declaring English and French to be the official languages and allowing for bilingual public services.
Canada Day
The anniversary of the Act's entry into force on July 1, 1867 is celebrated annually in Canada as Canada DayCanada Day
Canada Day , formerly Dominion Day , is the national day of Canada, a federal statutory holiday celebrating the anniversary of the July 1, 1867, enactment of the British North America Act , which united three British colonies into a single country, called Canada, within the British Empire...
, Canada's national holiday
National Day
The National Day is a designated date on which celebrations mark the nationhood of a nation or non-sovereign country. This nationhood can be symbolized by the date of independence, of becoming republic or a significant date for a patron saint or a ruler . Often the day is not called "National Day"...
.
Further reading
- Gwyn, Richard J. Nation Maker: Sir John A. Macdonald: His Life, Our Times (2011); 688pp excerpt and text search
- Morton, W.L. The Critical Years: The Union of British North America, 1857-1873 (1968)
Primary sources
- Browne, G. P. ed. Documents on the Confederation of British North America (2nd ed. McGill-Queen's University Press, 2009), 377pp; primary sources